Fidel Ispano Davis A/K/A Fefel Esphino Davis v. State

• Court: Court of Appeals of Texas
• Decided: May 19, 2011
• Docket: 13-11-00049-CR
• Status: Published

Opinion

NUMBER 13-11-00049-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

FIDEL ISPANO DAVIS A/K/A FEFEL ESPHINO DAVIS, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the Criminal District Court of Jefferson County, Texas.

MEMORANDUM OPINION Before Justices Garza, Vela, and Perkes Memorandum Opinion by Justice Perkes Appellant, Fidel Ispano Davis a/k/a Fefel Esphino Davis, appeals his conviction for

evading detention with a motor vehicle. See TEX. PENAL CODE ANN. § 38.04(b)(2) (West

2003). The offense was a third-degree felony because appellant had a prior conviction

for evading detention. See id. The State also alleged appellant was a habitual-felony

offender, and in the punishment phase of trial, appellant pleaded “true” to the prior

convictions the State alleged to show appellant‟s habitual-felony-offender status. See id. § 12.42(d) (West Supp. 2009). A jury found appellant guilty and sentenced him to

twenty-five years of confinement in the Texas Department of Criminal Justice. The trial

court ordered appellant‟s sentence to run consecutively, commencing after he finishes

serving his sentences in several other cases. See TEX. CODE CRIM. PROC. art. 42.08(a)

(West Supp. 2009). This appeal followed and appellant‟s court-appointed attorney filed

an Anders brief. We affirm.

I. ANDERS BRIEF

Pursuant to Anders v. California, 386 U.S. 738, 744 (1967), appellant‟s

court-appointed appellate counsel has filed a brief and a motion to withdraw with this

Court, stating that her review of the record yielded no grounds of error upon which an

appeal can be predicated. Counsel‟s brief meets the requirements of Anders as it

presents a professional evaluation demonstrating why there are no arguable grounds to

advance on appeal. See In re Schulman, 252 S.W.3d 403, 407 n.9 (Tex. Crim. App.

2008) (“In Texas, an Anders brief need not specifically advance „arguable‟ points of error

if counsel finds none, but it must provide record references to the facts and procedural

history and set out pertinent legal authorities.”) (citing Hawkins v. State, 112 S.W.3d 340,

343-44 (Tex. App.—Corpus Christi 2003, no pet.)); Stafford v. State, 813 S.W.2d 503,

510 n.3 (Tex. Crim. App. 1991).

In compliance with High v. State, 573 S.W.2d 807, 813 (Tex. Crim. App. [Panel

Op.] 1978), appellant‟s counsel has carefully discussed why, in light of controlling

authority, there are no reversible errors in the trial court‟s judgment. Counsel has

informed this Court that she has: (1) examined the record and found no arguable

grounds to advance on appeal, (2) served a copy of the brief and counsel‟s motion to

2 withdraw on appellant, and (3) informed appellant of his right to review the record and to

file a pro se response.1 See Anders, 386 U.S. at 744; Stafford, 813 S.W.2d at 510 n.3;

see also In re Schulman, 252 S.W.3d at 409 n.23. Appellant has responded by filing a

timely pro se brief.

II. INDEPENDENT REVIEW

A court of appeals has two options when an Anders brief and a subsequent pro se

response are filed. After reviewing the entire record, it may: (1) determine that the

appeal is wholly frivolous and issue an opinion explaining that it finds no reversible error;

or (2) determine that there are arguable grounds for appeal and remand the case to the

trial court for appointment of new appellate counsel. Bledsoe v. State, 178 S.W.3d 824,

826-27 (Tex. Crim. App. 2005). If the court finds arguable grounds for appeal, it may not

review those grounds until after new counsel has briefed those issues on appeal. Id.

Upon receiving an Anders brief, we must conduct a full examination of all the

proceedings to determine whether the case is wholly frivolous. Penson v. Ohio, 488 U.S.

75, 80 (1988). We have reviewed the entire record, counsel‟s brief, and appellant‟s pro

se response and have found nothing that would arguably support an appeal. See

Bledsoe, 178 S.W.3d at 827-28 (“Due to the nature of Anders briefs, by indicating in the

opinion that it considered the issues raised in the briefs and reviewed the record for

reversible error but found none, the court of appeals met the requirement of Texas Rule of

Appellate Procedure 47.1.”); Stafford, 813 S.W.2d at 509. There is no reversible error in

the record. Accordingly, the judgment of the trial court is affirmed. 1 The Texas Court of Criminal Appeals has held that “the pro se response need not comply with the rules of appellate procedure in order to be considered. Rather, the response should identify for the court those issues which the indigent appellant believes the court should consider in deciding whether the case presents any meritorious issues.” In re Schulman, 252 S.W.3d 403, 409 n.23 (Tex. Crim. App. 2008) (quoting Wilson v. State, 955 S.W.2d 693, 696-97 (Tex. App.—Waco 1997, no pet.)). 3 III. MOTION TO WITHDRAW

In accordance with Anders, appellant‟s attorney has asked this Court for

permission to withdraw as counsel for appellant. See Anders, 386 U.S. at 744; see also

In re Schulman, 252 S.W.3d at 408 n.17 (citing Jeffery v. State, 903 S.W.2d 776, 779-80

(Tex. App.—Dallas 1995, no pet.) (noting that “[i]f an attorney believes the appeal is

frivolous, he must withdraw from representing the appellant. To withdraw from

representation, the appointed attorney must file a motion to withdraw accompanied by a

brief showing the appellate court that the appeal is frivolous.”) (citations omitted)). We

grant counsel‟s motion to withdraw. Within five days of the date of this Court‟s opinion,

counsel is ordered to send a copy of this opinion and this Court‟s judgment to appellant

and to advise him of his right to file a petition for discretionary review.2 See TEX. R. APP.

P. 48.4; see also In re Schulman, 252 S.W.3d at 412 n.35; Ex parte Owens, 206 S.W.3d

670, 673 (Tex. Crim. App. 2006).

______________________ Gregory T. Perkes Justice

Do not publish. TEX. R. APP. P. 47.2(b).

Delivered and filed the 19th day of May, 2011.

2 No substitute counsel will be appointed. Should appellant wish to seek further review of this case by the Texas Court of Criminal Appeals, he must either retain an attorney to file a petition for discretionary review or file a pro se petition for discretionary review. Any petition for discretionary review must be filed within thirty days from the date of either this opinion or the last timely motion for rehearing that was overruled by this Court. See TEX. R. APP. P. 68.2. Any petition for discretionary review must be filed with this Court, after which it will be forwarded to the Texas Court of Criminal Appeals. See TEX. R. APP. P. 68.3, 68.7. Any petition for discretionary review should comply with the requirements of Texas Rule of Appellate Procedure 68.4. See TEX. R. APP. P. 68.4. 4